Making the move to merit selection for all appellate judges in Pennsylvania

Archive for May, 2009

In the wake of the recent Pennsylvania judicial primary elections, the issue of Merit Selection has become a hot topic for Pennsylvania bloggers. The World According to Tony Polombo offers an interesting assessment on some of the problems with judicial elections, focusing particularly on the lack of relevant information available to voters about the candidates:

For most of us, the only way we could tell for sure that there was an election were the countless number of candidates’ signs up and down the road for judges — most of whom we have never even heardof let alone know whether they would make good judges.

Polombo goes on to raise the problem of the role of money in judicial elections, and then suggests Merit Selection as a possible reform. He notes that electing public officials is important, but argues that elections where voters don’t know enough to make informed decisions are akin to “elections” with only one candidate or where the names of candidates are covered up.

Of course, there’s also the issue that judges are different from other other public officials and are supposed to make decisions without regard to personal opinions, political party pressure, popular will or the views of campaign contributors. To us, that’s a major reason that electing judges just doesn’t make sense.

Polombo concludes:

The question is not whether merit selection is perfect (it’s not). It’s whether it is an improvement over the system used by a minority of states who still have partisan elections for judges. Here in Pennsylvania, a number of groups, individual politicians, and newspaper editorial boards are supporters of merit selection for judges. The present system we have of electing judges has become a joke. Isn’t it time we all finally give this idea some serious consideration?

Thanks, Tony, for raising the question. We certainly think it’s time Pennsylvanians gave some serious thought to changing how we select appellate court judges.

David Yonki blogging at the Lu Lac Political Letter also gives some post-election thought to Merit Selection for the appellate courts:

Statewide. . . I think it should be considered. We don’t know candidates from Western Pennsylvania or even from one of our neighboring counties. But if a candidate has a gender and geographic base, they’ll win.

We are pleased to see Pennsylvanians questioning the current system and calling for some meaningful discussion about reform. We think it’s time to let Pennsylvanians decide whether to change how to select appellate court judges. Let the dialogue continue!

An editorial in the Wisconsin State Journal urges the adoption of Merit Selection in the face of increasing concerns about the role of money in judicial elections and the pressure on judges to state their opinions during judicial campaigns. In fact, there is now a pending recusal motion based on a Supreme Court justice’s campaign trail statements about sentencing decisions and procedural issues in criminal cases. The editorial notes:

[The recusal] request points to the serious consequences when judicial elections become charged with politics and outside money, as Wisconsin’s have. Justices who are supposed to be accountable for upholding the law instead become accountable for campaign promises.
More ominously, justices risk becoming accountable to the interests who bankroll their multi-million-dollar campaigns.

The stakes are described by the question: Is Wisconsin getting the best impartial justice it can provide, or is it getting the most partial justice that well-financed, partisan interests can buy?

Studies across the nation reveal decreasing public confidence in the courts, in large part due to the role of money in judicial campaigns. It is crucial to maintain the public trust in the fairness and impartiality of our courts. Without that trust, the foundation of our system is undermined.

Why continue to use a system of judicial selection that results in a lack of public confidence in our judges and courts? The Wisconsin State Journal has a good solution for Wisconsin and Pennsylvania: “Reform is required. Merit selection is the right choice.”

John Micek of the Allentown Morning Call and author of the Capitol Ideas blog offers a post-election look at the debate over whether we should continue to elect judges in Pennsylvania. He notes that there is a growing sense that the current election system is not working.

Micek notes that the lack of information available to voters in judicial elections — due to constraints on judicial candidate speech as well as limited coverage of judicial races in the media — creates a situation where results are driven by factors unrelated to qualifications to serve on the bench and voter turn-out is low:

Critics say that combination of factors has made the races the exclusive province of three constituencies: political party insiders, lawyers, and the big business interests who often find themselves in the courtroom.

So instead of the voters picking judicial candidates based on their temperament, experience and qualifications, external factors such as geography, gender and party endorsements can often carry the day.

“There’s no question we need to change. The only question is whether it’s going to be to something that’s equally as awful or to the highest quality we can get. . . . We need to have a real discussion and that hasn’t happened for years.”

Merit Selection offers a good solution to the problems Micek identifies. It focuses on qualifications, reduces or eliminates the role of factors like ballot position, name recognition, political party support and campaigning skill, and gets judges out of the fundraising business.

It’s time for Pennsylvania to tackle the serious issue of how we select appellate court judges. This requires a great deal of attention and commitment on the part of our leaders and citizens. We hope Pennsylvanians are ready to begin the work needed to address this issue.

Bill White of the Allentown Morning Call, writing a post-election wrap-up, reiterates his belief that Pennsylvania should use Merit Selection to choose appellate court judges. He reasons that most voters have little or no information to guide them in making decisions about who should sit on the appellate courts and that political party endorsements play too great a role in influencing who reaches the bench. He concludes:

So I advocate merit selection for our state judges. It wouldn’t remove all the politics, but at least it would ensure we get competent people in there.

This echoes something we’ve long understood: it’s not possible to take all the politics out of a judicial selection system. But it is possible to reduce the role of party politics and other factors irrelevant to being qualified to serve as a judge — like fundraising ability, ballot position, and county of residence. It is also possible to emphasize qualifications, skill and experience in the selection process. Merit Selection is the way to accomplish this.

John Baer, columnist for the Philadelphia Daily News, greets the day after election day with this question: “Time to end electing judges?” Answering his own question, Baer argues:

It has been long my contention that electing judges, especially statewide, is a joke. It strikes me even more so today. Pennsylvanians are filling six appellate judgeships this year. Yesterday’s ballot carried 22 candidates. I mean, come on.

First of all, it’s a crapshoot. Nobody’s heard of these people. So ballot position, geography (the ballot lists where candidates are from) and gender usually determine outcome. In other words, luck.

Then, Baer moves on to the money problem:

Also, judicial races are unseemly. Campaigns are funded by lawyers who later appear before the judges they help elect. So even apart from the pin-the-tail-on-the-donkey (or elephant) aspect of the process, electing judges begs for politics to influence justice.

Just the possibility that it will is enough to diminish faith in our courts.

Baer advocates for Pennsylvania to make a change and remove itself from the handful of states that elect all judges in partisan elections. We agree with him and hope that Pennsylvanians will ultimately get to decide for themselves whether to find a better way to pick appellate court judges.

On the eve of judicial elections, the Philadelphia Daily News has endorsed. . . a different way of picking judges — for policy and practical reasons:

WE WOULD like to maintain that we’re not participating in judicial endorsements because we believe judges should be selected on their merits instead of their campaign war chests and political party relationships.

That’s partially true, but we’re also unequipped to interview the many candidates (this year, 33) vying for judgeships. We realize that this puts us right on par with most voters who are faced with the nearly impossible task of deciding who’s qualified to sit in judgment.

When even newspapers whose reporters and editors spend more time following campaigns and candidates feel ill-equipped to make decisions about who should be a judge, it’s a strong signal that the electoral system isn’t working. The Daily News has advocated for Merit Selection in the past, but this year’s election endorsement of a different way of picking judges should make us all think about how we should be selecting judges.

In fact, the Sentinel (in Cumberland County) also is urging a change in how we pick judges:

The dust-up this past week between the two candidates for the Cumberland County Court of Common Pleas only serves to illustrate how flawed our method of electing judges is in Pennsylvania.

It brings to the forefront the fiction that judicial elections are in any way non-partisan, bipartisan — though candidates almost always file on both tickets in the primary — or somehow “above” politics.

And the required filing of financial reports, which were due and became public last week as well, drives home the point that whoever the winners are next week and in November, in judicial races ranging from district magisterial justice to the state supreme court, there will always be a thread of doubt about undue influence and the potential for bias on the bench.

The Sentinel points out that the role of money and politics in judicial selection are of serious concern. Although not quite ready to endorse Merit Selection, the editorial does end with a call for change:

[A]s we are seeing in our own back yard, when judicial candidates enter the traditional no-holds-barred political arena, no one walks away undamaged. A little mud sticks to everyone and both winner and loser are diminished in the end because, ultimately, the standing of the judiciary is besmirched.

There’s got to be a better way.

We agree, and are heartened to see that the current election process is convincing others to join in the call for reform.

The Philadelphia Inquirersets the stage for the election to fill a Supreme Court vacancy by citing comments the candidates’ made during the debate PMC cosponsored last week with the League of Women Voters of PA and the Harrisburg Area Community College:

Public perception of the judiciary has again emerged as a central issue in the statewide judicial campaigns, this time in the primary race to fill a single vacancy on the Pennsylvania Supreme Court.

With a high-profile judicial-corruption case in Luzerne County fresh on voters’ minds and questions about the length of time it took the Supreme Court to respond to issues raised by the case, candidates for the highest court are pledging to restore integrity to the bench.

Will this issue drive more voters to pay attention to and participate in the traditionally lower turn-out elections? PMC Executive Director Lynn Marks said it was possible: “”People are saying, ‘We don’t want a court system like the one we read about in Luzerne.’ ”

What about the damage done to perceptions of the courts and the judiciary through the electoral process itself, in particular the need for campaigns to raise money from lawyers, law firms and entities who frequently litigate in the courts? This is a major concern of voters, and a very good reason to find a new way to select appellate court judges.

Last night, PMC Executive Director Lynn Marks was interviewed on Philadelphia 2012 Official Countdown To December 21, 2012 ‘s Fox 29 about the upcoming judicial elections. Introducing the story, reporter Bruce Gordon explained that Pennsylvania is one of just six states that elects all judges in partisan elections and noted the “system is all too heavily influenced by luck and money.” He was referring to the all important-ballot position — a randomly selected placement of a candidate’s name on the ballot that is very often a major predictor of success in judicial elections.

He then asked Marks about the role of money in judicial elections. Marks talked about the public’s concern about the influence of campaign contributions on judicial decision-making, noting: “[The candidates] need money, and where does that money come from?” She spoke about the fact that lawyers, lawfirms and entities that frequently litigate in the state courts have traditionally been the biggest contributors to judicial campaigns.

Marks summed up the problem like this: “People should be concerned about who sits on the bench and how they get there. The system we have in Pennsylvania is not designed to get the most qualifed, fair and impartial people on the bench.”

Of course, she’s right, and that’s why we need to implement a Merit Selection system for the appellate courts.

Former United States Supreme Court Justice Sandra Day O’Connor minced no words in describing her opinion about judicial elections to the American Bar Association Journal: “They’re awful. I hate them.”

Justice O’Connor’s comments came in an interview following her remarks to the ABA’s Summit on Fair and Impartial Courts. During those remarks, she warned:

“The public is growing increasingly skeptical of elected judges in particular.” She was referencing surveys showing that more than 70 percent of the public and more than a quarter of judges are considerably more distrustful of their judges than they have been in the past.

Public trust and confidence in courts and judges is the foundation on which our justice system rests. The confidence is increasingly undermined by expensive, divisive partisan elections.

Writing on the Blog of Legal Times, Tony Mauro noted that Justice O’Connor “voiced concern that the public will view judges as “just politicians in robes.” But judges are different from other elected officials and play a very different role in our system of government. Here’s the problem: If we continue to treat our future judges like other elected officials until the moment they take the bench — including requiring them to campaign and raise money like other candidates — how do we guarantee that judges can succesfully fulfill their special role?

In its editorial announcing endorsements for the local courts in Philadelphia, the Philadelphia Inquirer notes that this year’s elections once again make the case for changing to Merit Selection:

When voters size up the 33 candidates seeking nomination for 11 Philadelphia judgeships in the May 19 primary, they may well apply the usual uninformed criteria that often decide these races: candidates’ names, gender, ethnicity, party backing, ballot position, slogan, or advertisements.

Trouble is, those factors have little to do with candidates’ qualifications to sit in judgment on either Common Pleas Court or Municipal Court. Add the fact that these candidates have to fund-raise among lawyers who appear before them in court, and the system’s flaws are obvious.

The flawed election process strengthens the case for switching to merit-based judicial appointments, with voters’ getting a say through retention elections.

This reasoning applies even more strongly to the appellate courts, where even more money is required to run a statewide campaign and voters rely heavily on name recognition, geography (where a candidate lives) and party endorsements to make decisions in the voting booth. As the editorial points out, these factors have virtually nothing to do with whether one is qualified to sit on the bench.

It’s time to find a better way to select judges — one that focuses on qualificiations, so we can get the most skilled, experienced, fair and impartial judges on the bench. And the system must also get judges out of the fundraising business. Merit Selection is the answer.